Petition for Writ of Certiorari — Michael White, Petitioner v. Donald Knapp, Jr., et al.

Supreme Court briefMar 16, 2021

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Text

- 1307

No.

Supreme Court, U.S.

FILED

MAR 1 6 2321

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

MICHAEL B. WHITE

PETITIONER

DONALD KNAPP, JR. AND KORAL KNAPP

RESPONDENTS

On Petition for Writ of Certiorari to the Michigan Supreme Court.

PETITION FOR WRIT OF CERTIORARI

PETITIONER PRO SE:

Michael B. White, Individual

11255 Block Road

Birch Run, MI 48415

Tel 989-780-2110

mikewhite5558@gmail.com

RECEIVED

MAR I 8 2021

QUESTIONS PRESENTED

"The owner of the land before sale...may effect a constructive severance of a crop,

and thus prevent it from passing to the purchaser." Kroth vDobson, 324 Mich 384

at 399 (1949) citing Ray v Foutcb (Tex.Civ.App.), 50 S.W.2d 380, 381.

QUESTIONS:

1. When a debtor uses 11 USC 522(d)(3) to legally exempt property from the

bankruptcy estate and a subsequent state court jurisdiction ownership

conflict arises (preemption doctrine), are state courts required to give full

faith and credit to bankruptcy law granting debtor’s exemptions?

2. Does failure to honor a debtor’s exempt property ownership rights violate the

federal bankruptcy code, Law vSiegel, 571 U.S.

(2014), Schwab vReilly

560 U.S. 770 (2010), by extension, preemption, due process, and equal

protection rights under the U.S. Constitution, and Michigan Constitution?

3. Did the state courts wrongly deny debtor state court standing to pursue

enforcement of debtor’s property ownership for items removed from the

bankruptcy estate by 11 USC 522(d) exemption?

TABLE OF CONTENTS

QUESTIIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CORPORATE DISCLOSURE STATEMENT

DOCKET CITATION,

PARTIES TO THE PROCEEDINGS

PETITION FOR WRIT OF CERTIORARI

ORDERS BELOW—MICHIGAN

JURISDICTION

JURISDICTION—BANKRUPTCY COURT

SUGGESTION OF ORAL ARGUMENT WAIVER

RULES OF THE U.S. SUPREME COURT

PRO SE LITIGANT.............................................

CONSTITUTIONAL, STATUTORY PROVISIONS

CASE LAW & COURT RULES...........................

STATEMENT OF THE CASE

APPLICABLE MICHIGAN LAW

REASON FOR GRANTING THE WRIT

CONCLUSION

APPENDIX

TABLE OF AUTHORITIES

Cases:

ATF Michigan v State of Michigan, 497 Mich 197 (2015)

Beason v Beason, 435 Mich 791 (1990)................................

Blough v Steffens, 349 Mich 365 (1957)

In re: Bonner, Bonner v Sicherman, case 04-8101 (6th Cir. 2005)

Bourne v. Farmers Ins. Exchange, 449 Mich. 193, 197; 534 NW2d 491 (1995)

Brown v O’Keefe, 300 U.S. 598, 602 (1937)

In re; Burke, Jahn v Burke, case 16-6603 (6th Circuit, 2017)

14, 17

14, 17, 27

Corley v. Detroit Bd. Of Educ., 470 Mich. 274, 278 (Mich. 2004)

Cusano v. Klein, 264 F.3d 936 (9th Cir. 2001).................................

17, 27

In re: DeVore, 223 B.R. 193, 197 (B.A.P. 9th Circuit 1998)...........

Groth v Stillson, 20 Mich 704 (1969)

Haines v Kerner 404 U.S. 520 (1971)

Hardesty v Haber (In re: Haber), # 17-3323 (6th Circuit 2017)

14, 17, 27

Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945)............................

Hoehn v McIntosh 110 F2d 199, 202 (6* Circuit, 1940)

14, 17, 27

Hubscher & Son, Inc v Storey, 228 Mich App 478, 483 (1998)

Jenkins v McKeithen, 395 U.S. 411, 421 (1959)

Klooster v City of Charlevoix, 488 Mich 289, 295 (2011)............

In re: Kromer, 202 F3d 268, 2000 WL 32022 at 2 (6th Cir 2000)

Kroth v Dobson, 324 Mich 384 at 399 (1949)

Law v Siegel, 571 U.S.

18, 19

13, 16, 21, 26

(2014)

Cases con’t:

In re^ McGowan, 95 B.R. 104, 106 (Bankr. N.D. Iowa 1998)

Maiden v. Rozwood, 461 Mich. 109, 120; 597 N.W.2d 817 (1999)

24, 25, 26

Maty v Grasselli Chemical Co., 303 U.S. 197 (1938)

Michigan v. Long, 463 U.S. 1032 (1983)...........................................................

Mino v. Clio School Dist, 255 Mich. App. 60, 67; 661 N.W. 2d 586 (2003)

In re Mohring, 142 B.R. 389 at 395, (E.D. Ca. 1992)

16, 17

Neubacher v. Globe Furniture Rentals, 205 Mich. App. 418, 420;

522 N.W.2d 335 (1994)............................................................................

Payne v Wood, 775 F2d 202, 205-207 (7th Circuit 1985)

People v Armstrong, 490 Mich 281, 289 (2011)

Quinto v. Cross & Peters Co., 451 Mich. 358, 362; 547 N.W. 2d 314 (1996)

Ray v. Foutch (Tex.Civ.App.), 50 S.W.2d 380, 381

SSC Associates Ltd Partnership v. General Retirement System,

192 Mich. App. 360, 364; 480 N.W.2d 275 (1991)............................

18, 19

St. Helen Shooting Club v Mogle, 234 Mich 60 (1926)

Sanders v. Clark Oil Refining Corp., 57 Mich. App. 687, 689

14, 16, 17, 26

Schwab v Reilly 560 U.S. 770 (2010)

SEC v Sloan, 436 U.S. 103 (1978)

14, 17

Sessions v Romadka, 145 U.S. 29 (1892)

Spiek v. Dep’t of Transportation, 456 Mich. 331, 337; 572 N.W. 2d 201 (1998)

Taylor v Freeland & Kronz, 503 U.S. 638, 643-644 (1992)

In re: Wenande, 107 B.R. at 772

14, 26

Cases con’t:

In re^ White, Michael B.& Darla K., case 13-21977-dob

Bankr ED Mich ND..............................................................

passim

White, Michael v Knapp, Donald Jr. and Koral,

Saginaw County 10th Circuit Court, case 18'037070-CH

10, 22

White, Michael v Knapp, Donald Jr. and Koral, case 346921, Mich COA....10, 25, 26

White, Michael v Knapp, Donald Jr. and Koral, case 161638

Mich. Supreme Court......................................................................

In re: Xonics, Inc. 813 F2d 127, 131 (7th Circuit 1987)

10, 26

14, 17, 27

U.S. Constitution:

Article 1, Section 8, Clause 4,

Article 6, Section 2.................

5th Amendment........................

14th Amendment.....................

Michigan Constitution:

Article 1, Section 2.......

Article 1, Section 17.....

Federal Statute:

11 USC 522(d)....

11 USC 522(d)(3)

11 USC 522(d)(5)

11 USC 525.........

11 USC 541(a)....

11 USC 554.........

28 USC 157(b)....

28 USC 451.........

28 USC 1257(a)..

28 USC 1334.......

28 USC 1654.......

passim

......13, 15

14, 16, 27

U.S. Supreme Court Rules:

USSC Rule 6.........................

USSC Rule 28.8....................

USSC Rule 29.6....................

11, 12

Federal Rules Bankruptcy Procedure:

FRBP Rule 1009......................................

FRBP Rule 4003......................................

................. 13, 15, 21

13, 16, 20, 21, 22, 27

Bankruptcy Official Forms:

Schedule C (Official Form B-106C)

passim

Michigan Court Rules:

MCL 2.116(C)(4)..........

MCL 2.116(0(10)........

..... 10, 14, 25

10, 14, 15, 24

Publications:

Black’s Law,5th ed............................

5 Collier on Bankruptcy 554.02[3]

18, 28

Bankruptcy Docket Citations

BANKRUPTCY DOCKET LISTING

Most of the bankruptcy dockets cited contain large amounts of extraneous

information which may hinder the clarity and brevity of this petition! thus, most are

not attached in the appendix. All are readily available on the government’s judicial

website: PACER.

To view any specific documents, go to the PACER bankruptcy court section, then

to: Eastern District Michigan, then to case 13-21977-dob.

Bankruptcy Docket List:

168

252

258

261

270

306

329

351 (contains Purchase Agreement)

358

390

486

515

528

529

567

608

714

817

824

880

887

1005

APPENDIX LIST

1. Michigan Supreme Court decision, case 161638, December 22, 2020

2. Michigan Court of Appeals decision, case 346921, April 23, 2020

3. Saginaw County Circuit Court decision, 18-037070-CH-5, Nov. 2, 2018

4. Saginaw County Cir. Court dec. denying reconsideration, December 5, 2018

5. Amended Exemptions December 2, 2014 (Docket 242), case 13'21977'dob

6. Trustee Objections (Docket 258 & 270) To Debtor’s Amended Exemptions

Docket 252 & 261. No specific FRBP 4003 objections to Fish In Pond, Crop

Profits, Or Fence & Fence Items, case 13-21977

7. Exemption Order Docket 486, February 12, 2016, regarding grant of

exemptions Fish In Pond, Fence & Fence Items, Paragraph H right to exceed

statutory limits for (d)(3)

8. Opinion & Order Denying Trustee’s Motion For Turnover (Docket 306)

Dockets 528/529), August 3, 2016

9. Amended Exemption Schedule Docket 608, Page 12 of 22, March 1, 2017

FMV approximately 20 acres perennial pasture and perennial hay crop

10. Trustee’s Financial Report Docket 329, April 23, 2015, Pages 1 & 2,

Line 1 real estate, Line 21 crop profit a prendre

11. Trustee’s Financial Report Docket 515, April 26, 2016 (post-real estate sale)

Pages 1 and 2>‘ Line 1 real estate fully-administered, Line 21 crop profit

active

12. Quitclaim Deed, August 5, 2015, and Purchase Agreement, June 1, 2015.

13. Affidavit Chapter 7 Trustee Corcoran, August 21, 2018.

14. Affidavit Michael B. White, October 18, 2018

15. Order (Docket 887), Sept. 19, 2019, Clarifying & Correcting Orders (Docket

824 & 880). Michael White’s exemption are valid.

CORPORATE DISCLOSURE STATEMENT

Michael White has no U.S. Supreme Court Rule 29.6 corporate disclosures.

DOCKET CITATION

Unless otherwise stated, all ECF docket reference (Docket) is to bankruptcy case

13‘21977-dob, Eastern District of Michigan, Northern Division at Bay City. Chapter

11 filed July 30, 2013, converted to Chapter 7 August 22, 2014, the case remains

open. All referenced “Dockets” may be viewed in their official filing at the

government’s website: PACER.

PARTIES TO THE PROCEEDINGS

Michael B. White, Individual

11255 Block Road

Birch Run, MI 48415

Tel 989-780-2110

mikewhite5558@gmail .com

Donald Knapp, Jr. and Koral Knapp, formerly husband & wife

c/o Attorney Adam D. Flory

Smith Bovill, PC

200 St. Andrews Road

Saginaw, MI 48638-5938

Tel 989-792-9641

afl.ory@smithbovill.com

PETITION FOR WRIT OF CERTIORARI

Michael White respectfully petitions this Honorable U.S. Supreme Court for a

writ of certiorari to review the judgment of the Michigan Supreme Court and its

lower courts. State court remedies have been exhausted. White has timely filed this

petition for a writ of certiorari within ninety days of the Michigan Supreme Court's

judgment.

ORDERS BELOW

MICHIGAN

On December 22, 2020, the Michigan Supreme Court denied Petitioner’s

application for leave to appeal, case 161638. Petitioner’s application sought to

overturn the April 23, 2020 unpublished per curium Opinion and Order of the

Michigan Court of Appeals in Michael White vs Donald Knapp, Jr. and Koral

Knapp, MiCOA case 346921. The Court of Appeals affirmed the Saginaw County

10th Circuit Court, case 18-037070-CH, which granted of summary disposition in

favor of Defendants Knapp per MCL 2.116(C)(4), lack of subject matter jurisdiction,

and (C)(l0), no genuine issue of matter fact, and denied White’s cross-motion for

summary disposition per MCL 2.116(C)(10).

Previous to the state circuit court action the bankruptcy code granted and the

bankruptcy court issued orders fundamental to the state court action^ 11 USC

522(d)(3) exemptions.

JURISDICTION

The U.S. Supreme Court has jurisdiction under 28 U.S.C. 1257(a).

JURISDICTION OF THE BANKRUTPCY COURT

Pursuant to 28 USC 1334 and 28 USC 157(b) the bankruptcy court had

jurisdiction to grant 11 USC 522(d)(3) exemptions.

SUGGESTION OF ORAL ARGUMENT WAIVER

RULES OF THE U.S. SUPREME COURT

PRO SE LITIGANT

Petitioner believes this matter can be decided by this Honorable Court without

oral argument as a matter of remand to the state court with instruction for

application of applicable preemptive federal bankruptcy law, including 11 USC

522(d) a debtor owns property validly claimed exempt from the bankruptcy estate,

back to the beginning, as if no bankruptcy had been filed, and has standing to

litigate in state court to protect property ownership rights retained from the

bankruptcy estate. Any doubt the exemptions are valid is a matter of fact for which

summary disposition is never proper, requiring further state court proceedings.

Samuel Howard Sloan was the last non-lawyer pro se litigant to argue before the

United States Supreme Court in 1978, SEC vSloan, 436 U.S. 103 (1978). July 1

2013, the rules of the U.S. Supreme Court were amended to prevent (non-lawyer)

pro se litigants from arguing before the Court. Rule 28.8, “Oral arguments may be

presented only by members of the Bar of this Court. Attorneys who are not

members of the Bar of this Court may make a motion to argue pro hac vice under

the provisions of Rule 6.”

Perhaps inconsistent with Rule 28.8 is 28 U.S.C. 1654 which states, “In all courts

of the United States the parties may plead and conduct their own cases

personally or by counsel as, by the rules of such courts, respectively, are permitted

to manage and conduct causes therein.” 28 USC 451 states, “The term “court of the

United States” includes the Supreme Court of the United States....”

Pleadings by pro se litigants are held to a “less stringent standard” than those

drafted by attorneys, Haines vKerner 404 U.S. 520 (1971). Pro se pleadings are to

be considered without regard to technicality, pro se litigant pleadings are not to be

held to the same high standard as standards of perfection as lawyers, Jenkins v

McKeithen, 395 U.S. 411, 421 (1959). “Pleadings are intended to serve as a means of

arriving at fair and just settlements of controversies between litigants. They should

not raise barriers which prevent the achievement of that end. Proper pleading is

important, but its importance consists in its effectiveness as a means to accomplish

the end of a just judgment,” Maty v Grasselli Chemical Co., 303 U.S. 197 (1938).

Petitioner respectfully suggests the Court sua sponte invite amicus participants

to argue on behalf of Petitioner. At Court invitation, Petitioner will present a Rule 6

motion for waiver of Rule 28.8 regarding oral argument.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

AND SELECTED CASE LAW AND COURT RULES

Article 1, Section 8, Clause 4 of the United States Constitution authorizes

Congress to enact "uniform Laws on the subject of Bankruptcies throughout

the United States.” See Title 11 of the U.S. Code.

Article 6 Section 2 federal bankruptcy law is preemptive to state law.

The rights of the honest but unfortunate debtor are protected by the 5th

Amendment due process clause, the 14th Amendment equal protection clause of the

Constitution. Also see 11 USC 525.

The Michigan Constitution Article 1, Section 17 protects due process identical to

the U.S. Constitution. Michigan Constitution Article 1, Section 2 states, “No person

shall be denied the equal protection of the laws...”

11 USC 522(d) grants debtors the right to exempt (remove) property from the

§54l(a) bankruptcy estate, exempt property is owned by the debtor.

Law vSiegel, 571 U.S.

(2014) Courts must operate within jurisdiction of the

bankruptcy code. Debtor’s exemption must be granted unless a FRBP 4003 objection

specifically proves the exemption violates the code. Per FRBP 4003 if no objection to

an exemption is filed proving the exemption violates the code, the exemption passes

to the debtor, as a matter of law, 30 days after filing the exemption. FRBP 1009 a

debtor may freely amend their schedules any time before the close of the case.

“Where...it is important...to exempt the full market value of...the asset itself,

our decision will encourage the debtor to declare the value...by listing the exempt

value as “full fair market value” (FMV)... If trustee fails to object, or if the trustee

objects and the objection is overruled, the debtor will be entitled to exclude the full

value of the asset,” Schwab v Reilly, 130 S. Ct. 2652 (2010).

Trustee who fails to make a timely objection cannot challenge an exemption,

Taylor v Freeland & Kronz, 503 U.S. 638, 643-644 (1992).

Ownership of property exempted by 11 USC 522(d) or abandoned by 11 USC 554

is retained by debtor, back to the beginning, as if no bankruptcy petition had been

filed, Sessions v Romadka, 145 U.S. 29 (1892); Brown v O’Keefe, 300 U.S. 598, 602

(1937), In re^Burke, Jahn v Burke, case 16-6603 (6th Circuit, 2017), citing 5 Collier

on Bankruptcy 554.02[3]; Hoehn vMcIntosh 110 F2d 199, 202 (6th Circuit, 1940).

Once property is abandoned from the bankruptcy estate, either as a matter of law or

by court order, the property cannot be taken away from the debtor. Exempt

property is not in the bankruptcy estate, not under the jurisdiction of the Chapter 7

trustee, and no longer under the jurisdiction of the bankruptcy court, state

jurisdiction resumes, Hardesty v Haber (In re: Haber), # 17-3323 (6th Circuit 2017).

“[Bankruptcy] jurisdiction does not follow the property. It lapses when the property

leaves the [bankruptcy] estate,” In re-' Xonics, Inc. 813 F2d 127, 131 (7th Circuit

1987).

State courts improperly applied Michigan summary disposition law. MCL

2.116(C) and (C)(10), lack of subject matter jurisdiction and no genuine issue of

matter fact, respectively, and failed to grant White’s motion for summary

disposition against Knapp per MCL 2.116(C)(lO).

Michigan v Long, 463 U.S. 1032 (1983), it is essential for purposes of review by

the Supreme Court that it appear from the record that a federal question was

presented, that the disposition of that question was necessary to the determination

of the case, that the federal question was actually decided or that the judgment

could not have been rendered without deciding it. The Court has adopted a

presumption that when a state court decision fairly appears to rest on federal law or

to be interwoven with federal law, and when the adequacy and independence of any

possible state law ground is not clear from the face of the opinion the Court will

accept as the most reasonable explanation that the state court decided the case as it

did because it believed that federal law required it to do so. If the state court wishes

to avoid the presumption it must make clear by a plain statement in its judgment or

opinion that discussed federal law did not compel the result, that state law was

dispositive.

STATEMENT OF THE CASE

On date of bankruptcy petition, 11 USC 541(a) creates a bankruptcy estate

comprising all of the debtor’s property. Also, on date of petition, or any time

thereafter, a Chapter 7 debtor files Schedule C (Official Form B-106C) to claim 11

USC 522(d) exemptions removing selected property from the estate. FRBP 1009

grants debtors the right to freely amend their Schedule C at any time before the

case is closed. (Property can also be abandoned from the bankruptcy estate back to

debtor via §554, this case doesn’t involve that section.) Regardless of the impact it

may have on the bankruptcy estate, the debtor has the sole decision as to what

property to exempt.

If possible, a debtor is to list an approximate property amount, In re- Wenande,

107 B.R. at 772. Trustee filed Trustee’s Motion For Turnover (Docket 306) on March

30, 2015. Less than a month later, on April 26, 2015, Trustee officially severed the

crop from the real estate, Trustee’s financial report (Docket 329, Line 21), crop

value $100. On April 26, 2016, Trustee changed the amount to $5,000 (Docket 515

Line 21) also noting Debtor’s value was $16,250. However, Debtor’s value $16,250

FMV, Full Fair Market Value. See Schwab.

After a debtor files Schedule C, FRBP 4003 grants a party in interest 30 days to

file objections, otherwise the property returns to debtor as a matter of law. A

debtor’s exemption cannot be denied unless the objecting party proves the

exemption violates the bankruptcy code, Law vSiegel. For valid exemptions, debtor

may keep the actual property when the value is within the code’s allowance or at

Full Fair Market Value (FMV) when notated, Schwab vReilly 560 U.S. 770 (2010).

When claiming an exemption, “[T]here are no bright-line rules...what is required

is reasonable particularization under the circumstances,” In re- Kromer, 202 F3d

268, 2000 WL 32022 at 2 (6th Cir 2000) quoting In re Mohring, 142 B.R. 389 at 395

(E.D. Ca. 1992). In In re- Bonner, Bonner v Sicherman, case 04-8101 (6th Cir. 2005)

quoted Mohring\ Kromer,'and Cusano. “...every bankrupt must do enough itemizing

to enable the trustee to determine whether or not to investigate further,” In re16

Mohring quoting Payne v Wood, 775 F2d 202, 205-207 (7th Circuit 1985). Cusano v.

Klein, 264 F. 3d 936 (9th Cir. 2001), “Cusano’s listing was not so defective that it

would forestall a proper investigation of the asset... which provided inquiry notice to

affected parties to seek further detail if they required it.”

Ownership of property exempted by 11 USC 522(d) or abandoned by 11 USC 554

is retained by debtor, back to the beginning, as if no bankruptcy petition had been

filed, Sessions v Romadka, Brown v O’Keefe\ In re: Burke, Jahn v Burke\ 5 Collier

on Bankruptcy 554.02[3]>‘ Hoehn vMcIntosh. Once an exemption is granted, as a

matter of law or by court order, the property cannot be taken from the debtor, In re•'

McGowan, 95 B.R. 104, 106 (Bankr. N.D. Iowa 1998) and In re ' DeVore, 223 B.R.

193, 197 (B.A.P. 9th Circuit 1998). Exempt property is not in the bankruptcy estate,

not under the jurisdiction of the Chapter 7 trustee, and is no longer under the

jurisdiction of the bankruptcy court. State jurisdiction resumes. Hardesty v Haber.

“[Bankruptcy] jurisdiction does not follow the property, it lapses when the property

leaves the [bankruptcy] estate,” In re'- Xonics, Inc).

Debtors may exceed the code allowance. “Where...it is important...to exempt the

full market value of...the asset itself, our decision will encourage the debtor to

declare the value...by listing the exempt value as “full fair market value” (FMV)...

If trustee fails to object, or if the trustee objects and the objection is overruled, the

debtor will be entitled to exclude the full value of the asset,” Schwab v Reilly.

There are many sub-sections to §522(d), this matter only involves (d)(3) personal

property, wrongly but colloquially called “household items,” (d)(3) includes crops

and animals. Black’s Law includes pasture as crops. A relevant (d)(3) requirement

is the property be “held primarily for the personal, family, or household use of the

debtor...” This case involves approximately 20 acres of perennial pasture and

perennial hay crop, fish in pond profits, and fence and fence items.

Bankruptcy courts must follow substantive state law. Michigan profit a prendre

case law is well-established, the actual contract is intangible, the “fruits” of the

profit are tangible, both are personal property. A profit is independent from the fee

title of the land. “The owner of the land... may effect a constructive severance...

preventing it from passing to the purchaser, ”Kroth v Dobson, 324 Mich 384 at 399

(1949). “A profit a prendre may be segregated from the fee of the land and conveyed

in gross to one who has no interest in the ownership in the fee, when so conveyed it

is assignable and inheritable... A profit a prendre is the right to acquire, by

severance or removal from another’s land, something previously constituting part of

the land,” Hubscher & Son, Inc v Storey, 228 Mich App 478, 483 (1998).

Black’s Law recognizes “free fishery” as an exclusive franchise (not regarded as

land) distinct from the soil and without right to the soil. In this case, Debtor’s

retention of the fish in pond profit is similar to waterfowl hunting rights which, in

Michigan, are a profit a prendre, involving access to land to take something from it,

above it, or from its water, St. Helen Shooting Club vMogle, 234 Mich 60 (1926). In

St. Helen, the Michigan Supreme Court found that a landowner who owns all the

shore around an inland lake is the owner of the land under the water, had the

exclusive right to hunt on the water, and had the exclusive right to convey these

rights to others, separating the rights from the land ownership.” Petitioner

correctly followed St. Helen Shooting Club to claim a (d)(3) fish in pond exemption.

Under Michigan law, crops, including multi-year crops, are fruit of industry, are

personal property, severable from the land, even by oral agreement, access to the

land is granted by law for their care and maintenance, Kroth vDobson, 324 Mich.

384 at 387 (1949). Crop profits can be transferred by oral agreement, without

violating the statute of frauds or parol evidence rule. Blough v Steffens, 349 Mich

365 (1957). Multi-year crops can be separated from the fee title and transferred

separately by unrecorded agreement, Groth vStillson, 20 Mich 704 (1969). The

“deed operated on the real estate only and not on the personal property,” Blough.

Consistent with the code the exemptions were in writing and filed with the

bankruptcy court. Bankruptcy documents and County Register of Deeds filings are

available for public view. Also, before bankruptcy, March 8, 2013, Whites filed a

Notice of Farm Operation with Saginaw County Register of Deeds, Liber 2715 Page

499, including the legal description of 11085 Block Road. This put interested real

estate sale bidders on notice Debtor had a crop interest.

Debtor filed Chapter 11 on July 30, 2013 (Docket l), claiming 11 USC 522(d)

Schedule C exemptions for crops and animals. In Chapter 11 exemptions go to

minimum plan funding. August 22, 2014, the case was converted to Chapter 7

(Docket 168). Consistent with FRBP 1009, Debtor amended Schedule C, December

2, 2014 (Docket 252), and again on December 23, 2014 (Docket 261) to add serial

numbers. Debtor specifically exempted approximately 20 acres of perennial pasture

and hay crop, fish in pond profits, fence and fence items.

Trustee filed exemption objections, Docket 258 and 270, December 8, 2014 and

January 6, 2015. Trustee alleged Debtor’s hay crop was not primarily personal but a

commercial operation. Trustee did not object to the fish in pond profit or fence and

fence items, per FRBP 4003, as a matter of law, the fish in pond profit and fence

and fence items reverted to Debtor January 1, 2015.

On April 23, 2015, before the sale of the real estate, Trustee recognized the crop

severance from the real estate in her financial report (Docket 329) treating them as

independent assets, the real estate is Line 1, the crop profit is Line 21. Before the

sale of the land, Debtor filed motion to harvest hay on July 17, 2015 (Docket 390) it

was rolled into Trustee’s Motion For Turnover (Docket 306). Before either motion

was heard, Trustee sold the 11085 Block Road real estate, August 5, 2015, issuing a

Quitclaim Deed removing it from the jurisdiction of the bankruptcy court. Previous

to the deed, the bankruptcy court approved the sale (Docket 358) based on the

Purchase Agreement which was AS IS, No Warranty, No Guaranty, buyer to

perform all due diligence.

401 days after Debtor claimed the crop exemption, a hearing was held on

Trustee’s objections, January 28, 2016. Trustee stipulated to exemption of all non

crop (d)(3) items and stipulated (d)(3) could exceed statutory limits (Order Docket

486, Paragraph H). The matter of whether the crop was commercial or primarily

personal in nature was held over for Trustee’s Motion For Turnover (Docket 306).

On January 28, 2016, the exemption was not granted, it was not denied it was

merely held over for further hearing on Trustee’s Motion For Turnover (Docket 306)

based on Trustee’s theory the crop was not personal, but commercial.

Co-debtor Darla died January 1, 2015. March 30, 2015, Trustee filed Trustee’s

Motion For Turnover (Docket 306) alleging Debtor must turnover Darla’s term-life

insurance benefits, her accumulated social security disability benefits, her food

assistance benefits, and the hay crop because it was commercial, as stated above

Trustee failed to prove a violation of the bankruptcy code, her motion was denied in

its entirety, Opinion/Order Dockets 528/529, August 3, 2016.

As Debtor was not required to turn over the crop, the crop exemption was valid,

Law vSiegel. In Order Docket 486 (paragraph H) Trustee stipulated (d)(3) could

exceed code allowance, did Order Docket 529 make this applicable to crops?

Pursuant FRBP 1009, Debtor filed amended exemption Schedule C claiming Full

Fair Market Value (FMV) for approximately 20 acres perennial pasture and

perennial hay crop, Docket 608, March 3, 2017. Trustee did not file FRBP 4003

objection to the FMV value of the pasture and hay crop, per FRBP 4003 as a matter

of law the exemption became effective April 1, 2017. (Trustee did object to matters

not involved in this litigation.) On April 26, 2016, Trustee amended her Line 21 crop

value to $5,000 as her value and $16,250 as Debtor’s value (Docket 515, Line 21).

At this point in the bankruptcy proceedings in this matter should be done.

However, after Darla’s death her bankruptcy matters were represented by an

attorney. The attorney did not represent Michael White. On August 8, 2017, Darla’s

attorney filed amended exemptions on behalf of Darla (Docket 714). The exemptions

were for Darla only, no amended exemptions for Michael White were filed. Despite

the facts, Trustee filed Rule 4003 objections against Michael White’s non-existent

amended exemption filing, now claiming the crop exemptions was invalid.

Not only were there no exemptions filed by Michael, the ones filed by Darla’s

attorney were withdrawn on May 14, 2018 (Docket 817). Despite the fact there were

no exemptions before the court, the bankruptcy court issued an order denying “all”

of Michael’s exemptions, Order Docket 824, July 31, 2018. The court attempted to

correct the erroneous Order Docket 824 but made further errors, Order Docket 880,

August 1, 2019. Trustee was quick to exploit the court’s error based on her

inappropriate FRBP 4003 objection to non-existent exemptions.

Petitioner filed suit against Respondents Knapp in Saginaw County (Michigan)

Circuit Court, case 18-037070'CH, on July 27,2018. On August 21, 2018, Trustee

issued an Affida vit for the benefit of Respondents Knapp, Trustee stated Debtor

retained no rights to real estate that was sold to Knapp and the bankruptcy court

denied the exemptions in Docket 824.

Trustee’s affidavit was silent as to the profits a prendre for fish in pond and

fence and fence items. Though alleged in the complaint Knapp did not deny the

allegations and did not preserve any argument on these items in the state courts.

Trustee’s affidavit did not mention her former attorney stipulated that all non-crop

(d)(3) exemptions were valid and stipulated to (d)(3) exceeding the statutory limits

(Docket 486, paragraph H). Trustee did not state she failed to Rule 4003 object to

the FMV crop exemption in Docket 608. Trustee “nuanced” her affidavit to state the

crop exemptions were “not granted” in Docket 486 and not listed in Abandonment

Order Docket 567. She did not mention crop were held over for her Motion For

Turnover and it was denied in its entirety, and crops did not have to be turned over.

Her affidavit ignored mentioning on April 23, 2015, before the sale, she severed the

crop from the real estate in her financial reports (Docket 329, Line 21).

Any reference to the December 19, 2016 ORDER ALLOWING ABANDONMENT

OF SPECIFIC ITEMS TO THE DEBTOR (Docket 567) is a red herring. As the title

states it is only for specific items and is not all inclusive. If necessary, see

clarification notes for the December 2014 exemption filings Dockets 252 and 261,

where debtor made a “mind numbing” list of items. The Order (Docket 567) was

drafted by Trustee omitting numerous items including at least one vehicle. As

another example of omissions Trustee’s April 26, 2016 financial report Docket 515,

Line 2, Column 5 lists $5,250 rent though it is a substantial amount of money it is

not listed in Docket 567, either under Trustee’s continued administration or

abandoned to Debtor. On February 9, 2021, the bankruptcy court ordered this

property returned to Debtor via §522(d)(5) exemption, Order (Docket 1005).

On October 18, 2008, Michael White issued an affidavit countering the lack of

accuracy of Trustee’s affidavit. Two conflicting affidavits create a question of fact

which under Michigan law summary disposition is never proper.

The circuit court issued summary disposition to Defendants, denied Plaintiffs

cross-motion for summary, and denied Plaintiffs motion for reconsideration. The

case was in the Michigan Court of Appeals when on September 19, 2019, the

bankruptcy court issued ORDER (DOCKET 887) FOR CLARIFICATION AND

CORRECTION OF COURT ORDERS AT DOCKET 824 AND DOCKET 880:

The Court now corrects and clarifies the following: Docket 714 contained

amended exemptions for Darla K. White, deceased, the fifing was for her

only, it did not contain any amended exemptions for co-debtor Michael White.

Docket 714 was filed by her attorney George Jacobs who represented only

Darla K. White, deceased. Mr. Jacobs did not represent Debtor Michael

White. Michael White is the personal representative of the Estate of

Darla K. White, deceased. On inspection of Docket 714, the Court notes the

amended exemptions in that docket are for only Darla K. White, deceased.

Mr. Jacobs, nor anyone else, filed any amended exemptions for Michael White

in Docket 714. Docket 714 was withdrawn by Mr. Jacobs on May 14, 2018

(Docket 817). That withdrawal closed all issues regarding amended

exemptions in Docket 714. On July 31, 2018, the Court made an oversight

error regarding any ruling on any matter in Docket 714. The Order at Docket

824 is moot in its entirety.

1. On his behalf, Michael White did not intend to file or authorize any

amended exemptions on August 8, 2017, Docket 714, thus there was

nothing for this Court to address in Docket 714 regarding this

topic.

2. On May 14, 2018, Docket 817, Darla K. White, deceased, via her

attorney Mr. Jacobs, withdrew her amended exemption schedule filed

at Docket 714, as such there was nothing for this Court to rule upon in

Docket 714.

3. All valid and granted exemptions of Michael White remain unaffected

by Docket 824.

Petitioner White provided judicial notice to the Michigan Court of Appeals.

APPLICABLE MICHIGAN LAW

Michigan Court Rule 2.116(C)(lO) only provides for summary disposition where

there is no genuine issue as to any material fact. A motion under MCR 2.116(0(10)

tests the factual sufficiency of the complaint. Maiden v. Rozwood, 461 Mich. 109,

120; 597 N.W.2d 817 (1999); Spiek v. Dep’t of Transportation, 456 Mich. 331, 337;

572 N.W. 2d 201 (1998); Mino v. Clio SchoolDist, 255 Mich. App. 60, 67; 661 N.W.

2d 586 (2003). The trial court must also consider the affidavits, pleadings,

depositions, admissions, and other evidence submitted by the parties in the light

most favorable to the nonmoving party. Maiden, supra at 120; Quinto v. Cross &

Peters Co., 451 Mich. 358, 362; 547 N.W. 2d 314 (1996). The trial court must grant

the benefit of all reasonable doubt to the nonmoving party. Bourne v. Farmers Ins.

Exchange, 449 Mich. 193, 197; 534 NW2d 491 (1995).

Summary disposition law for MCL2.116(C)(4) is similar.

In presenting a motion for summary disposition, the initial burden of factually

supporting the motion through affidavits, depositions, admissions or other

documentary evidence rests with the moving party. Neubacher v. Globe Furniture

Rentals, 205 Mich. App. 418, 420; 522 N.W.2d 335 (1994); SSCAssociates Ltd

Partnership v. General Retirement System, 192 Mich. App. 360, 364; 480 N.W.2d

275 (1991). The burden then shifts to the opposing party to establish that a genuine

issue of fact does indeed exist. Neubacher supra at 420.

The Michigan Court Appeals states, “The test which the court should apply in

considering motions under is whether plaintiffs claim, on the pleadings, is so

clearly unenforceable as a matter of law that no factual development can possibly

justify a right to recovery,” and that “[wlhere the resolution of the legal issue may

depend greatly upon the factual context, summary judgment on the pleadings is

never proper,” Sanders v. Clark Oil Refining Corp., 57 Mich. App. 687, 689 (Mich.

Ct. App. 1975). In evaluating such a motion, a court considers the entire record “in

the light most favorable to the party opposing the motion, including affidavits,

pleadings, depositions, admissions, and other evidence submitted by the

parties.” Corley v. Detroit Bd. ofEduc., 470 Mich. 274, 278 (Mich. 2004). These

standards are very well settled and should be properly applied to the case at hand

to determine whether the claim can go forward.”

The standard of review by the Michigan Court of Appeals and Michigan Supreme

Court review of a state circuit court order of summary disposition is de novo. Where

a finding is derived from an erroneous application of law to facts and where the trial

judge's factual findings may have been influenced by an incorrect view of the law,

Beason vSeason, 435 Mich 791 (1990). Michigan summary dispositions are viewed

de novo, Maiden v Rozwood, 461 Mich 109 (1999). Questions of law are reviewed de

novo, ATF Michigan v State ofMichigan, 497 Mich 197 (2015). Statutory

interpretation is reviewed de novo, Klooster v City of Charlevoix, 488 Mich 289, 295

(2011), as are constitutional issues, People vArmstrong, 490 Mich 281, 289 (2011).

REASON FOR GRANTING THE WRIT

When state courts fail to yield to the preemptive nature of bankruptcy law and

debtors’ rights to remove property from the bankruptcy estate, a whole class of

Americans are severely injured at a time when they can least financially afford it.

When state court fail to give full faith and credit to the decisions of this Supreme

Court, justice and uniformity erode. This Supreme Court should accept the Writ to

enforce its decisions in Law vSiegel Schwab vReilly, and Taylor vFreeland &

KronzaxA more general exemptions rights contained within the code.

This writ is an excellent opportunity for this Court to bring uniformity across the

country by clarifying that ownership of property exempted by 11 USC 522(d) or

abandoned by 11 USC 554, whether as a FRBP 4003 matter of law or by court

order, is retained by debtor, back to the moment at or BEFORE the petition was

filed, as if no bankruptcy petition had been filed. This would elevate the results of

such cases as In re- Burke,' Hoehn vMcIntosh; Hardesty v Haber, and In re- Xonics

to a single nation uniform standard.

“Our [the U.S. Supreme Court] only power over state judgments is to correct

them to the extent that they incorrectly adjudge federal rights. And our power is to

correct wrong judgments...” Herb v. Pitcairn, 324 U.S. 117, 125—26 (1945).

The administration of bankruptcy cases relies on clear, uniform law with trust

the law will be applied fairly and equally. When this Court speaks, the nation’s laws

become more uniform. Enforcing this Court’s earlier decisions will strengthen the

work this Court has already done.

CONCLUSION

In December 2014, Petitioner correctly and legally claimed exemptions for fish in

pond, approximately 20 acres perennial pasture and perennial hay crop profits and

fence and fence items. Per Cusano and related cases, if Trustee did not have

sufficient knowledge of Debtor’s intent, she had the right to inquire further. She did

not inquire because there was no need, on April 23, 2015, Trustee recognized the

profits being severed from the fee title of the real estate and she separated the

profit from the real estate in her financial report (Docket 329) listing the real estate

at Line 1 and crop profit at Line 21.

Whether Trustee informed the real estate purchase is unknown, but not relevant

to Debtor’s ownership. Even if Trustee had been successful in having the

bankruptcy court determine the crop profit was commercial, not (d)(3) primarily

personal, it is the bankruptcy estate that would have gained, not the real estate

purchaser, because Trustee acknowledged severance before the sale. Nor would a

commercial crop court decision have affected the fish in pond profit, or fence and

fence items exemption which the Trustee, via her former attorney, stipulated to in

Docket 486. Nothing in the Purchase Agreement or Quitclaim Deed specifically

suggest any profit a prendre transfer. Black’s Law is clear pasture is a crop,

Michigan profit law is clear a severance can be made any time before the land sale.

The Michigan courts failed to honor Debtor’s federal bankruptcy rights. Summary

disposition should never have been granted to the real estate purchaser. Debtor’s

cross-motion for summary should have been granted, or at a minimum remanded to

the circuit court for further proceedings.

Respectfully submitted,

«5T'

Michael White, Petitioner Pro Se

11255 Block Road

Birch Run, MI 48415

Tel 989-780-2110

Email: mikewhite5558@gmail.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.